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H.R. 4238

H.R. 4238 – To amend the Immigration and Nationality Act to provide for requirements for employers of H-2B non-immigrants, and for other purposes

This bill was introduced by Representative Andy Harris March 13, 2014 and on April 16 was referred to the Subcommittee on Immigration and Border Security of the US House Committee on the Judiciary. Harris is a second term Republican Member of the US House from the 1st District of Maryland.  He serves on the Appropriations Committee. Congressman Harris has a large number of seafood processors in his district and has come to realize that they, like many other employers who utilize the H-2B program, need to have the clarity and certainty that only reform legislation will provide given the ongoing conflict over implementation of proposed and existing rules. This bill amends the Immigration and Nationality Act with respect to a returning H-2B alien (temporary nonagricultural worker) who has already been counted toward the annual numerical limitation. It also exempts such an alien from that limitation unless he or she leaves the United States for more than one year and has not been counted toward the limitation in any of the three years before his or her departure. As introduced the bill sets forth H-2B employer requirements regarding: (1) petitions, (2) transportation costs, (3) displacement of U.S. workers, (4) wages, (5) housing, and (6) an incentive for an employer to report absconding H-2B workers.

Notably the bill provides:

“(d) Wages – The wages to be paid to H–2B non-immigrants shall be the greater of—(1) the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or (2) the prevailing wage level for the occupational classification of the position in the geographic area in which the H–2B nonimmigrant will be employed, based on the best information available at the time of filing the petition.”

And it continues:

“(3) The term best information available, with respect to determining the prevailing wage for a position, means—(A) a controlling collective bargaining agreement, where the employer is a signatory to a collective bargaining agreement that sets wages for work performed by H–2B non-immigrants; (B) if there is no controlling collective bargaining agreement as set forth in subparagraph (A), the local, State, or Federal prevailing wage laws or ordinances, for any time period during which the H–2B nonimmigrant performs work on a project for which payment of such wages is required by such laws or ordinances, and the employer has signed a contract agreeing to pay such wages on that project; or (C) if there is no controlling collective bargaining agreement as set forth in subparagraph (A) and the H–2B nonimmigrant is not performing work governed by a prevailing wage law or ordinance as set forth in subparagraph (B)— (i) the wage level commensurate with the experience, training, and supervision required for the job based on Bureau of Labor Statistics data; or (ii) a legitimate private wage survey of the wages paid for such positions in the geographic area in which the H–2B nonimmigrant will be employed. (4) The term legitimate private wage survey means, in the case of a petition under subsection (a), a survey of wages by an entity other than the Federal Government where— (A) the data has been collected during the 2-year period immediately preceding the date of the petition; (B) if a published survey, the survey has been published during the 2-year period immediately preceding the date of the petition; (C) the employer job description is similar to the survey job description;(D) the survey is across industries that employ workers in the occupation; (E) the wage determination is based on a weighted or straight average of the relevant wages or the median of relevant wage levels; and (F) the survey identifies a statistically valid methodology that was used to collect the data.”

OABA believes that Congress should focus on preserving the benefits of the H-2B program for potential visa applicants and for US employers in our industry whom rely on this program. It is time to consider reforming and enhancing this vital tool and we encourage the consideration of legislative initiatives such as H.R. 4238.

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